Adverse Possession

July, 2004

Contents

Introduction to Adverse Possession

Adverse possession is a principle of real estate law whereby somebody =
who=20
possesses the land of another for an extended period of time may be able =
to=20
claim legal title to that land. The exact elements of an adverse =
possession=20
claim may be different in each state.

To prove adverse possession under a typical definition, the person =
claiming=20
ownership through adverse possession must show that its possession is =
actual,=20
open, notorious, exclusive, hostile, under cover of claim or right, and=20
continuous and uninterrupted for the statutory period. These terms have =
special=20
legal meanings as legal "terms of art", meaning that their definition =
for=20
purposes of adverse possession law may be different from a definition =
you would=20
find in a standard dictionary.

Please note that real estate laws can vary significantly between=20
jurisdictions. Adverse possession is now usually governed by statute, =
and the=20
law, definitions of terms, and the applicable statute of limitations can =
vary=20
significantly between jurisdictions.

Definitions

As previously mentioned, the definition of "adverse possession" =
involves=20
legal "terms of art" - words which have a special legal meaning that may =
differ=20
from their standard definitions. The elements of "adverse possession" =
are that=20
possession of the real estate is actual, open, notorious, exclusive, =
hostile,=20
under cover of claim or right, and continuous and uninterrupted for the=20
statutory period.

Actual - You actually acted in the =
manner of an=20
owner of the property.

Open & Notorious - You engage in =
acts of=20
possession consistent with the property at issue in a manner which was =
capable=20
of being seen. (This does not mean that you must have been observed in =
your acts=20
of ownership but, had the actual owner or members of the public been in =
a=20
position to see you, your acts must have been observeable). You need not =
use the=20
property in a manner that exceeds that which would be expected of the =
actual=20
owner - that is, it may be possible to claim adverse possession of a =
vacation=20
property on the basis of use only during the vacation season, or to =
claim=20
adverse possession of a vacant parcel of land by engaging in typical =
acts of=20
maintenance for the parcel.

Exclusive - The adverse possessor =
does not=20
occupy the land concurrent with the true owner or share possession in =
common=20
with the public. One does not have to exclude others from the land in =
order to=20
claim "exclusive" use, but during the statutory period the person =
claiming title=20
by adverse possession must have been the only person to treat the land =
in the=20
manner of an owner.

Hostile - Hostility exists where a =
person=20
possesses the land of another intending to hold to a particular =
recognizable=20
boundary regardless of the true boundary line. That is, possession is =
"hostile"=20
to the title owner's interest in the property. If possession was not =
hostile, it=20
may still be possible to advance a claim of ownership under a theory of =
"a=
cquiescence".=20
You cannot claim "adverse possession" if you are engaged in the =
permissive use=20
of somebody else's land.

Under Cover of Claim or Right - =
Either when the=20
person claiming the property makes the claim based upon constructive =
possession=20
under color of title (e.g., there is an error in the legal description =
in their=20
deed leading them to believe they own part of a neighboring property),=20
or makes the claim based upon actual use and possession =
of the=20
area of land at issue for the statutory period

Continuous & Uninterrupted - All =
elements=20
of adverse possession must be met at all times through the statutory =
period in=20
order for a claim to be successful. It may be possible to claim adverse=20
possession even if there is a transfer of ownership through the =
principle of=20
"tacking" - for example, a former owner's twelve years of adverse =
possession can=20
be "tacked" to the present owner's eight years, for a cumulative twenty =
years of=20
adverse possession.

The Statutory Period - The statutory =
period, or=20
"statute of limitations", is the amount of time the claimant must hold =
the land=20
in order to successfully claim "adverse possession".

Common Defenses to Adverse Possession

While the following list is far from exhaustive, these defenses are =
very=20
often brought in adverse possession actions:

Permissive Use - If the actual owner =
has=20
granted the claimant permission to use the property, the claim of =
"adverse=20
possession" cannot be deemed "hostile" and thus fails.

Public Lands - Government-owned land =
may be=20
exempt from adverse possession.

Insufficient Acts - Although it is =
conceded=20
that the claimant engaged in some use of the property, it is alleged =
that these=20
acts were not sufficient to amount to acts suggesting a claim of =
ownership.

Non-Exclusive Use - Although it is =
conceded=20
that the claimant engaged in some use of the property, it is alleged =
that others=20
(usually the property owner) also used the property in a manner =
consistent with that of the landowner.

Insufficient Time - Even if various =
elements of=20
adverse possession were met, it is alleged that the adverse possession =
did not=20
last for the full statutory period, or that the adverse possession was=20
interrupted by a period of non-use.

=

Copyright =A9 2004 - 2011 Aaron Larson. All rights reserved. =
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portion of this article may be reproduced without the express written =
permission=20
of the copyright holder. If you believe you may lawfully use a =
quotation,=20
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